Banh v Transport Accident Commission
[2013] VCC 215
•22 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-05267
| KIEN LUONG BANH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 March 2013 | |
DATE OF JUDGMENT: | 22 March 2013 | |
CASE MAY BE CITED AS: | Banh v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 215 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport Accident – pre-existing neck condition – aggravation of the pre-existing neck condition – whether the aggravation of itself was serious – plaintiff to have pain management treatment – whether the consequences in terms of pain and suffering and pecuniary disadvantage had stabilised
Legislation Cited: Transport Accident Act 1986, s93(4)(b), (6) and (17)
Cases Cited:Jayatilake v Toyota Motor Corporation (2008) 20 VR 605; Petkovski v Galletti [1994] 1 VR 436; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Humphries v Poljak [1992] 2 VR 129.
Judgment: The plaintiff is granted leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr C O’Sullivan | Zaparas Lawyers |
| For the Defendant | Mr A Moulds SC with Ms B Myers | Transport Accident Commission |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 7 November 2011 by which the plaintiff applies for leave pursuant to section 93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by her arising out of a transport accident which occurred on 15 April 2008.
2 Mr J Mighell SC appeared with Mr C O'Sullivan of Counsel for the plaintiff and Mr A Moulds SC appeared with Ms B Myers of Counsel for the defendant.
3 The application is brought pursuant to s93(4)(d) of the Act. Subsection (6) provides that a Court must not grant leave under ss(4)(d) unless the Court is satisfied that the injury is a “serious injury”.
4 The definition of “serious injury” relied upon by the plaintiff is under ss(17):
“(a) serious long term impairment or loss of a body function.”
5 The injury suffered by the plaintiff for which leave is sought is an injury to the neck.
6 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book ("PCB") pages 14-20, and 22-130: Exhibit A;
· The defendant tendered its Court Book ("DCB") pages 1-16, 21-24, 27-31, 32-83, and 100-112: Exhibit 1.
The Plaintiff's Background
7 The plaintiff was born in 1968 in Vietnam. He had six years of formal schooling. He subsequently worked for his father in a sewing machine repair business for four to five 5 years. He then worked with his uncle making bicycle tyres for one to two years before returning to work with his father.
8 The plaintiff ceased working for his father in 1990 when he migrated to Australia. He arrived in Australia on 29 April 1990. The plaintiff worked in a number of factory jobs. The last job he had before the occurrence of the transport accident was with Fashion Club Wear. He commenced working for that employer in about 1999.
9 The plaintiff speaks practically no English. He gave the whole of his evidence through an interpreter. There were occasional moments when he gave a response in English when he seemed to understand what he was asked. My overall impression was that his English is extremely modest at best, both in a spoken and written form.
The Transport Accident
10 On 15 April 2008, the plaintiff was driving his car on Canterbury Road, Blackburn South. He was on his way to work. He was stopped at traffic lights. He was struck by a car to the rear of his car.
11 The plaintiff believes he was momentarily unconscious. He experienced a sense of shock. He was removed from the scene of the transport accident by ambulance. He was taken to the Box Hill Hospital. He was treated principally for an injury to his neck.
The Prior Neck Complaint
12 Mr Moulds submitted that the plaintiff had an established actively symptomatic pre-existing neck condition prior to the occurrence of the transport accident. He submitted that it was for the plaintiff to explain the nature and extent of the pre-existing neck condition, and to establish that what ever injury he suffered in the transport accident resulted in a long-term impairment of the function of his neck with consequences which were serious.
13 Mr Moulds firstly referred me to the report of Dr Pan, general practitioner dated 31 August 2008.[1] Dr Pan recorded the following history:
“3 He has a past history of complain[t] of neck and upper back pain. There was no previous complain[t] [of] occipital headache or paraeth[e]sia down the left arm.”
[1]DCB 65-66
14 In relation to treatment he provided the plaintiff before the transport accident, he recorded the following:
“8 Pre-accident: Voltaren 50mg one twice a day when necessary.”
15 I was next referred to an entry in the clinical notes of Dr Pan for 19 January 2007, which is as follows:
“2/12 hist. of pain at the rt upper back aggravated by bending forwards, deep breathing on occasions. Not kept awake at nite. Works as tailor. Carry role of material weighing 20 kg.
…
Diagnostic Imaging requested: X-ray - Spine -Thoracic.”[2]
[2]DCB 66d
16 According to the radiologist, the x-ray taken on 19 January 2007 demonstrated, among other things, the following:
“Minor decrease in disc height noted at one of the lower cervical levels as indicated on the radiograph.”[3]
[3]DCB 16
17 I was next referred to an entry in the clinical notes of Dr Pan for 29 March 2007 which is as follows:
“3-4/7 pain at the base of neck…
…
Medication/Product Added: PANADOL OSTEO TABLET 665mg 2 b.d.
Prescriptions printed.
PANADOL OSTEO TABLET 665mg 2 b.d.”[4]
[4]DCB 66e
18 I was next referred to an entry in the clinical notes of Dr Pan for 7 March 2008 which is as follows:
“Last 2-3/7 cervical neck pain. Nil to the arm. Kept awake at nite.
O/E tenderness at C7-T1 Move
…
Medication/Product Added: VOLTAREN 50 EC TABLET 50mg 1 b.d. c.c.”[5]
[5]DCB 66i
19 I was next referred to the clinical notes of Dr Hubert, osteopath, made on 5 April 2008, which are as follows:
“PAIN IN NECK ON R SIDE, WITH CERVICAL SPINE TENSION
SOME RADIATION OF PAIN AND NEUROLOGICAL SYMPTOMS
IN R SIDE GREATER THAN L… PAIN GETTING WORSE WITH SOME RADIATION IS INTO HIS R ARM. ESP
R NECK.
NECK PAIN ON L OE, NO SYMPTOMS.NO PRIOR ACCIDENT OR INJURY
NO PRIOR TREATMENT
NO MEDICATIONSAGGRAVATING FACTORS FOR NECK, LIFTING.
DIAGNOSIS
HYPERTONIC TRAPEZIUS + NECK MUSCLES WITH NECK PAIN ON R
INITIAL TREATMENT MOBILITY TO CERVICAL MUSCLES + NECK, SOFT TISSUE TO CERVICAL AND THORACIC MUSCLES. ARTICULATIONS/MOBILISATION OF CERVICAL SPINE + THORACIC.”[6]
[6]PCB 42A
20 The foregoing is a note prepared by agreement by the parties based upon the clinical notes of Dr Hubert. Part of the clinical note is a typewritten pro forma with additional handwritten notes which are partly indecipherable.[7]
[7]Compare PCB 42B3-42B5 with PCB 42A
21 The ambulance officers who removed the plaintiff from the scene of the transport accident prepared an electronic patient care report which discloses that the plaintiff told the ambulance officers:
“PT STATES PREVIOUS NECK PAIN, AWAITING DIAGNOSIS FROM GP.”[8]
[8]PCB 28
22 On the same report, the ambulance officers also recorded:
“pt is a 39yo male with limited English. Pt States previous neck pain, unable to ascertain a previous injury - ? undiagnosed … .”
23 I was next referred to the plaintiff's evidence. The plaintiff said that prior to the transport accident he was employed as a cutter which involved cutting fabric. He would adopt a posture leaning over the material in order to undertake cutting work. The work would also involved lifting rolls of fabric from time to time.
24 The plaintiff said that he suffered mild back soreness and tiredness before the transport accident. He denied having sought medical attention. He denied having any time off, but said he would rest at home. He said he took some medication, but had not seen any medical practitioners.[9]
[9]Transcript 13
25 Mr Moulds put the clinical notes of Dr Pan and Dr Hubert, and the notes made by the ambulance officers squarely to the plaintiff. The plaintiff said that he did not remember Dr Pan prescribing Voltaren, but if that was in Dr Pan's clinical notes that he would accept the correctness of the note. He said that he had a vague recollection of having osteopathic treatment provided by Dr Hubert on 5 April 2008 (10 days before the transport accident). He said he did not recall telling the ambulance officers that he had a pre-existing neck problem.[10]
[10]Transcript 18-19 and 50-51
26 Mr Moulds then put the ultimate proposition to the plaintiff that he had a significant problem with his neck prior the transport accident. The plaintiff denied that was so. He said that he was working normally at that time. He also denied having persistent lower back pain prior the transport accident.[11]
[11]Transcript 20
27 In re-examination the plaintiff said that there was no occasion when he was unable to work because of neck pain. The plaintiff described his work as a cutter as comprising some light work and some heavy work. He used scissors and a knife to cut textiles using his left hand. He would lean over the cutting table a bit to cut fabric. He would lift rolls of fabric.[12]
[12]Transcript 52
28 I accept the plaintiff's evidence that he was employed full-time as a cutter before the transport accident. I do not accept his evidence that he was not having any medical treatment before the transport accident for neck and associated pain in his right arm. Mr Moulds submitted that the plaintiff was playing down the level of symptoms he was experiencing in his neck and right arm before the transport accident, and was therefore, not a creditworthy witness.
29 I have carefully read the evidence which Mr Moulds took me to, and especially the transcript of the plaintiff's evidence. The plaintiff conceded that he had experienced symptoms in his neck and had treatment after he was confronted with the ambulance records, and the clinical notes of Dr Pan and Dr Hubert. The question is whether the plaintiff made those concessions only because he was confronted by those records and notes, or that he genuinely had no recollection of what those records and notes contained until the same were put to him.
30 I am more inclined to accept the plaintiff's evidence that he had little recollection of what those records and notes contained until they were put to him. However, notwithstanding that inclination it seems to me that he is not an overly reliable witness. It is for that reason that I am more inclined to accept the records and notes on their face value where the plaintiff disagreed with the content of those records and notes.
31 Mr Moulds submitted that it was a difficult task for me to determine what the future course of the plaintiff's pre-existing neck problem might be, given the content of the records and notes which demonstrated a symptomatic neck which was causing the plaintiff sufficient impairment of function to resort to treatment.
32 Mr Mighell submitted that I should accept that the plaintiff was suffering from an impairment of the function of his neck prior the transport accident, but measured by the fact that he was working full time in a relatively arduous occupation as a cutter. He submitted that the plaintiff would not have been able to undertake that work if he was suffering from a level of impairment which was more than modest. Furthermore, Mr Mighell submitted that a comparison is made between how the plaintiff was faring before the transport accident and after it occurred demonstrates a stark contrast comprising a dramatic deterioration in the plaintiff’s neck condition which he submitted was entirely attributable to the transport accident.
The Plaintiff's Medical Treatment
33 Mr Moulds conceded that the transport accident comprised a collision of some substance. The ambulance officers recorded that the car which collided into the plaintiff's car was travelling at 30 to 40 kilometres per hour.[13] The source of that information is not disclosed, so its reliability cannot be tested.
[13]PCB 28
34 The plaintiff was treated at the Box Hill Hospital on the day of the occurrence of the transport accident. The medical practitioners who treated him recorded that the plaintiff may have suffered a flexion/extension injury to his neck. The plaintiff complained of suffering moderate neck pain. He was given a hard collar to wear around his neck. On examination there was tenderness in his neck and some loss of sensation in his left arm, but otherwise no other abnormality was detected. He was referred to have an x-ray which demonstrated degenerative changes at C5 and C6 only.
35 The plaintiff returned to the Hospital on 20 April 2008. He was referred to have an MRI scan.[14] There was no bone or spinal cord injury detected. There was degenerative disc disease at C5-6 with a posterior central disc protrusion. The plaintiff then left the care of the Hospital as far as I can determine from the Hospital notes.[15]
[14]PCB 61
[15]PCB 100-101
36 The plaintiff was subsequently treated by Dr Pan. He referred the plaintiff to have an MRI scan which was taken on 5 August 2008. The radiologist reported that there were spondylotic changes at C3-7 maximally represented at C5-6. No other abnormality was reported.[16] Dr Pan referred the plaintiff to Mr Jithoo, neurosurgeon, who the plaintiff first saw in October 2008. The plaintiff told him that he was suffering from a very painful neck with intermittent numbness in his left arm. He also referred to symptoms in his lower back and left leg which I will ignore because they play no part in this proceeding. On examination he found no abnormality. He considered that the plaintiff had suffered an associated soft tissue injury with some stretching of the brachial plexus.[17]
[16]PCB 62
[17]DCB 67-68
37 Mr Jithoo reviewed the plaintiff on 28 November 2008. The plaintiff continued to complain of left-sided neck pain radiating down into his left thumb. He considered that it was suggestive of cervical radiculopathy. He referred the plaintiff to have nerve conduction studies to exclude a double crush syndrome.[18]
[18]DCB 69
38 Mr Jithoo reviewed the plaintiff on 12 March 2009. He had the nerve conduction studies and the MRI scan at that time. The nerve conduction studies were normal. He considered that the MRI scan report did not suggest any significant nerve root compression. He recommended that the plaintiff continue with physiotherapy and osteopathic treatment.[19]
[19]DCB 70
39 In July 2009 Mr Jithoo referred the plaintiff to Dr Gonzales, neurologist, to investigate whether the plaintiff had suffered left-sided cervical brachialgia. Dr Gonzales saw the plaintiff in September 2009. He referred the plaintiff to have further nerve conduction studies and an MRI scan.[20] He reviewed the plaintiff in February 2010. He considered that the MRI scan taken on 21 December 2009 showed a non-neural compressive disc prolapse in the cervical spine. He considered that the plaintiff's pain was spodylogenic or rheumatological. He referred the plaintiff to Dr Mitchell, consultant pain physician.[21] The plaintiff did not see Dr Mitchell.
[20]DCB 80
[21]DCB 81. Dr Gonzales provided two reports dated 13 September 2010 and 9 December 2010 at DCB 81b-81f
40 Mr Jithoo provided a report dated 18 August 2010 and before Dr Gonzales had completed his review and treatment of the plaintiff. In that report Mr Jithoo provided a diagnosis that the plaintiff had suffered a whiplash injury to his cervical spine, left sided cervical spine brachialgia, and polymyalgia/fibromyalgia. He considered that the plaintiff's degree of disability was mild-to-moderate, and that the injury to his neck and stabilised. He added that because of what he perceived to be the chronic nature of the plaintiff's injury to his neck that the anticipated period of the plaintiff's future incapacity would be significant. I take that to mean significant in terms of the time over which the plaintiff would suffer symptoms.
41 The plaintiff stopped seeing Dr Pan and commenced seeing Dr Chan in November 2009. Dr Chan’s opinion is significantly different from the opinions of Mr Jithoo and Dr Gonzales. Dr Chan was of the opinion that the plaintiff had suffered a whiplash injury to his cervical spine and had suffered left-sided cervical spine neural pathology. Dr Chan considered that the plaintiff had no current work capacity in his report dated 21 November 2010.[22] He provided a report dated 3 March 2013 in which he expressed a similar opinion, except that he was less inclined to provide a final prognosis because of the prospect of the plaintiff undertaking counselling with Mr Leung, psychologist,[23] and pain management with Dr Thomas, consultant in rehabilitation and pain medicine.[24]
[22]PCB 45-47
[23]PCB 57-59
[24]PCB 47a-47b
42 One matter of significance which Dr Chan recorded in his report dated 3 March 2013 is that the plaintiff did not report pain in his left arm, but trouble using his left arm especially with hard gripping or heavy lifting which caused pain in his neck and left arm.[25]
[25]PCB 47a
43 Dr Chan referred the plaintiff to Dr Thomas who first saw him on 13 December 2012. The plaintiff told Dr Thomas that he had persistent neck pain and episodic headaches. On examination he found that the range of movement of the plaintiff’s neck was more pronounced on the right side. He found that neurologically there was decreased sensation over the left radial digits and left radial forearm. He was of the opinion that the plaintiff had suffered a whiplash associated disorder with some brachialgia in the left upper limb. He was not convinced that the plaintiff had true signs of radiculopathy.[26] Dr Thomas recommended that the plaintiff undertake a pain management rehabilitation functional restoration type program.[27]
[26]PCB 59a-59b and 59aa-59bb
[27]PCB 59bb
44 The reference by Dr Thomas to a pain management rehabilitation functional restoration type program generated some debate between Mr Mighell and Mr Moulds. The defendant announced through Mr Moulds that it had approved a four-week pain management program for the plaintiff with a view to it being expanded to a 12-week program.[28]
[28]Transcript 72
45 In his affidavit sworn 5 August 2011 the plaintiff said that he sees Dr Chan about every two months and Mr Leung about once a month. He takes Panadeine Forte and Codalgin Forte for pain relief 2-3 times a week. He takes Panadol when his headaches are worse, and that occurs once or twice a week. He takes Celebrex, which is an anti-inflammatory, every day. He takes Cymbalta and Temazepam to treat his secondary psychological problems.
46 During cross examination the plaintiff said that at present he is using Cymbalta for his psychological problems, “some pills” to help him sleep and to treat his neck pain, and Celebrex to treat his neck pain.[29] Dr Thomas recorded, in his report dated 1 March 2013, that the plaintiff told him that he was using Cymbalta, Celebrex, Panadeine Forte, Panadol Osteo and Stilnox. The plaintiff was unable to remember the medication he was taking. I prefer what Dr Thomas has recorded as amounting to the medication regime the plaintiff has at present.
[29]Transcript 30-31
The Medico-Legal Assessments
47 The plaintiff has been examined by a number of medico-legal assessors. The first in time was Mr Flanc, general and vascular surgeon, who examined the plaintiff on 18 March 2011 and 3 August 2012. The plaintiff told him that he was suffering neck pain with radiation of pain down the back of his left upper limb into his left hand, which he experienced intermittently during the day and constantly at night. On both the occasions when Dr Flanc examined the plaintiff he found significant reduction in movement of the plaintiff's neck. He was of the opinion that the plaintiff had suffered a very significant whiplash injury to his neck being a combination of soft tissue injury and an aggravation of pre-existing disc degeneration which was previously a symptomatic.[30] He did not believe the plaintiff could return as a cutter or machine operator, and that he had a theoretical capacity for light part-time sedentary work.[31]
[30]PCB 87-111, and in particular at 100 and 109
[31]PCB 110
48 Mr Bittar, neurosurgeon, examined the plaintiff on 20 June 2011. The plaintiff told him that he suffered constant pain in his neck which varied in intensity; headaches; and numbness in his left hand which had been present for six months prior to the plaintiff seeing Mr Bittar. The left hand pain was fairly constant, and worse at night. Mr Bittar I was of the opinion that the plaintiff had suffered a whiplash injury to his neck, aggravation of cervical spondylosis as a result of the whiplash injury, cervicogenic headaches and probably left-sided cervical radiculopathy. He considered that the plaintiff had a significant degree of disability and a poor prognosis. He considered that he was incapacitated for his employment as a cutter.[32]
[32]PCB 113-116
49 Professor Davis, neurologist, examined the plaintiff on 24 February 2012 and on 2 November 2012. He told him that he had never recovered pain in his neck and pain and numbness radiating down his left arm into his left hand. On examination he found some features of loss of sensation in the left arm, but otherwise his examination of plaintiff appeared to turn up no abnormality. He was of the opinion that the symptoms experienced by the plaintiff suggested a degree of brachial neuralgia in the left upper limb and that the recent MRI scan suggested some left C6 radiculopathy, without any objective features of that.[33] On the second occasion on which he examined the plaintiff he was of the opinion that the plaintiff had suffered a musculoligamentous injury to his cervical spine and a protracted pain syndrome. He repeated that the plaintiff symptoms suggested some left C6 radiculopathy, again was no objective features. He considered that the plaintiff had a capacity for sedentary or light work.[34] It should be noted that Professor Davis considered that the plaintiff was depressed.
[33]PCB 120
[34]PCB 128-129
50 Dr Hjorth, neurologist, examined the plaintiff on 24 February 2010. The plaintiff told him that he suffered an injury to his neck, suffered headaches and dizziness, and numbness in his left shoulder and arm with weakness in his left arm. On examination he found neurological signs in the left upper limb suggesting that the pain was coming from involvement of the nerve roots in the neck which he considered to be the C5 or C6 nerve roots. He considered that there was an organic basis for the abnormal reflexes which he found on examination. He considered that the plaintiff had a capacity for light duties.[35]
[35]DCB 38-40 and 41
51 Mr Siu, neurosurgeon, examined the plaintiff in May 2012, 12 December 2012 and February 2013. The plaintiff told Mr Siu that his main problem was persistent pain in his neck with numbness in the left upper part of his arm with pins and needles and tingling which progressed down to his left index finger when the pain in his neck was worse. On examination Mr Siu found no abnormality in the plaintiff’s neck or left arm. He considered that the plaintiff was suffering from an unresolved soft tissue ligamentous injury with no suggestion of nerve root compression. He did not believe that the plaintiff symptoms could be explained by the organic pathology. He did not consider that there were any physical restrictions which should be placed upon the plaintiff in terms of a return to work. It should be noted that Mr Siu considered that the plaintiff was depressed.[36]
[36]DCB 53-56
52 On the subsequent occasions on which Mr Siu examined the plaintiff he expressed very much the same opinion as he formed after examining the plaintiff on the first occasion.[37] He said that he agreed with the opinion of Professor Davis that the plaintiff had developed a psychological state which he described as a complex pain syndrome. The nature of Professor Davis’s opinion and that of Mr Siu’s seem to be that the symptoms complained of by the plaintiff are not so much organically based, but the product of a complex pain syndrome.[38]
[37]DCB 57-64
[38]DCB 59
53 The plaintiff was examined by a number of psychiatrists. Dr Kornan examined the plaintiff on 25 February 2011 and 29 October 2012.[39] He considered that the plaintiff was suffering from a pain disorder with associated psychological factors.[40] Dr Grant examined the plaintiff on 16 December 2010. He considered that the plaintiff was suffering from “a pain problem” which would probably best be described as a chronic pain disorder.[41]
[39]PCB 67-84
[40]PCB 82
[41]DCB 45
54 The only other medical examination which is of relevance, and only marginally so, is the examination by Dr Elder, consultant in occupational and environmental medicine. He examined the plaintiff on 19 August 2008. The plaintiff told him that he was suffering from neck pain and right arm pain and pins and needles. It should be noted that the plaintiff's complaints of arm pain to other medical assessors was in his left arm. On examination he found a decreased range of movement in the plaintiff's neck. He found some neurological deficit, but it was equivocal. He considered that the plaintiff had suffered an aggravation of cervical spondylosis with clinical findings suggestive of radiculopathy, but he considered that it would be appropriate to refer the plaintiff to a neurosurgeon.[42]
[42]DCB 33-35
Findings Pre-Transport Accident
55 I find that the plaintiff was engaged in relatively arduous work as a cutter in a factory which required him to lift rolls of fabric when necessary, and to be prone over a table while undertaking the tasks required of a cutter. It is likely that a posture of that kind would throw stress and strain on the plaintiff's upper body.
56 The plaintiff undoubtedly suffered neck pain very probably associated with the nature of the work he did as a cutter. It is clear from my summary of the treatment which the plaintiff obtained before the transport accident that he was troubled by pain in the neck for which he sought treatment from Dr Pan and Dr Hubert. What is also clear is that the plaintiff saw Dr Hubert on 5 April 2008 complaining of pain in his neck especially on the right side, and some radiation of pain into his right arm. His clinical notes do not refer to pain on the left side, although, there is a reference to radiation of pain and neurological symptoms on the right side greater than the left side which suggests that there were some left sided symptoms.
57 I find that the plaintiff was working full time as a cutter despite having the symptoms which he described to Dr Pan and Dr Hubert. I have examined the transcript, and in particular, the evidence of the plaintiff when he was cross-examined by Mr Moulds on the subject of the interference which his pre-existing neck condition caused him.[43] I accept the plaintiff's evidence that he was troubled by pain in his neck and his right arm, but that it was tolerable. I accept that he sought treatment, took some medication and rested at home. I accept his evidence that he did not take time off work.
[43]Transcript 13
58 The question is whether the plaintiff suffered a neck condition of such a degree that whatever further injury he suffered to his neck in the transport accident cannot support the conclusion that the consequences which are attributable to the transport accident are serious.
59 I have considered the evidence and the very particular and well structured submissions made by Mr Moulds, but I am not persuaded that the plaintiff’s pre-existing pain in his neck was particularly disabling. T
60 I reject the submission made by Mr Moulds that I should venture into asking the question - what was going to happen to the plaintiff’s neck in the future? The invitation was to find that the plaintiff would continue to be troubled by his neck condition, and that it might worsen. If it continued to the same degree described by the plaintiff, and evident in the treatment provided to the plaintiff by Dr Pan and Mr Hubert, then the only conclusion I can reach is that the plaintiff would have continued working without interference, but would have suffered intermittent symptoms sufficient to see him resort to medical and osteopathic treatment. To do otherwise would be to speculate and not to adhere to the evidence. I should add that there is no evidence from any quarter to suggest that those intermittent symptoms boded poorly for the plaintiff in the future.
Findings Post-Transport Accident
61 The actual collision was of some substance, and indeed, it would appear that the other car was driving at a significant speed when it occurred. The treatment which the plaintiff obtained from the Box Hill Hospital and up until the present time under the care of Dr Chan and Dr Thomas, demonstrates that there is sound opinion supporting the conclusion that the plaintiff has suffered an organic injury which is responsible for the pain in his neck and pain radiating into his left arm and into the fingers of his left hand. I do not intend to repeat the opinions which I have summarised above, but the conclusion I have just reached is supported by the opinions of Mr Jithoo, Dr Gonzales, Dr Chan, Dr Thomas, Mr Flanc, Mr Bittar, Professor Davis, Dr Hjorth, and Dr Elder. It is not supported by the opinion of Mr Siu.
62 However, the opinions are different in some respects regarding the actual pathology suffered by the plaintiff which has given rise to the pain in his neck and in his left arm and hand. However, what is common in all of the opinions is that the plaintiff has suffered a whiplash injury which has caused a soft tissue injury, and perhaps a disc injury probably at C5 and/or C6. The pain experienced by the plaintiff in his left arm and hand might be the result of brachialgia or the disc injury.
63 I do not need to resolve the precise pathology which resulted from the transport accident which is the cause of the pain in the plaintiff’s neck and left arm and hand. I think it is sufficient to conclude that the plaintiff suffered a whiplash injury to his neck which probably involved the soft tissues of the his neck with some disc involvement at C5 and/or C6 and/or cervical brachialgia, with radiation of pain into the plaintiff's left arm and hand.
64 It seems to me that the preponderance of the medical evidence supports the conclusion referred to above. It follows that I reject the opinion of Mr Siu, and to the extent that Professor Davies is partially supportive of the conclusions reached by Mr Siu, I reject that part of his opinion as well. It seems to me that neither of those opinions ought to be accepted considering the weight of opinion against them.
65 I also reject the opinion of Mr Siu and Professor Davis that the plaintiff’s injury to his neck and the pain in his left arm and hand do not have a pathological basis and are more consistent with the product of a complex pain syndrome. Although, Dr Kornan and Dr Grant considered that the plaintiff was suffering from a pain disorder with associated psychological factors or a pain problem which could be described as a chronic pain disorder, I do not accept that their opinions together with the opinions of Mr Siu and Professor Davis must inevitably lead me to conclude that the consequences of the impairment of function of the plaintiff's neck is rather more psychologically driven than physically driven.
66 The latter conclusion is again against the weight of the evidence of Mr Jithoo, Dr Gonzales, Dr Chan, Dr Thomas, Mr Flanc, Mr Bittar, Dr Hjorth, and to some extent the opinion of Professor Davis, who, despite considering that the plaintiff had developed a psychological state which could be described as a complex pain syndrome, nonetheless considered that there is a pathological basis for the complaints of pain made by the plaintiff of pain in his neck and his left arm and hand.
67 I prefer the evidence of Mr Jithoo, Dr Gonzales, Dr Chan, Dr Thomas, Mr Flanc, Mr Bittar, Dr Hjorth, and to some extent the opinion of Professor Davis. From that evidence I am persuaded that the plaintiff suffered an injury to his neck with pain in his left arm and hand which have a physical basis and which are the cause of the consequences for which he contends. I consider that I have reached a point in my analysis of the evidence that I can be satisfied that the consequences of the impairment have been caused by the injury to the plaintiff’s neck. I am not satisfied that there is any necessity for any so-called disentangling.[44]
[44]Jayatilake v Toyota Motor Corporation (2008) 20 VR 605
The Plaintiff's Consequences
68 In summary the plaintiff contends that the consequences arising from the injury to his neck are as follows:
· He experiences persistent pain in his neck and intermittent pain in his left arm with varying degrees of loss of sensation in the middle and fourth fingers of his left hand. The neck pain is worse in cold weather.
· He experiences radiation of pain into his forehead producing headaches once or twice a week which can affect his vision and make him nauseous. The headaches see him use Panadol to deal with pain. The headaches may pass in an hour, but they might linger for a whole day.
· He experiences restriction of movement in his neck, for example, moving his head too quickly, having his head bent down and turning his neck cause pain.
· His sleep is interrupted to the extent that he finds it difficult to be comfortable when trying to get off to sleep. He uses sleeping tablets to help him get off to sleep about every second night. He is woken from his sleep once or twice a week by pain.
· He is restricted in undertaking simple domestic tasks such as vacuuming, cleaning, doing some gardening and doing some cooking.
· He no longer goes swimming which is something he did on weekends at the local pool. He no longer goes on occasional fishing trips. He goes out socially much less than he did before. He used to go to restaurants, karaoke bars and out with friends.
· He continues to see Dr Chan about every two months. He is prescribed a range of medication for pain to treat inflammation, to help him sleep and to treat his psychiatric or psychological condition.
· He is considered to be a candidate for a pain management program to be supervised by Dr Thomas.
· The preponderance of the medical evidence is that he is unfit for his work as a cutter. The medical opinions are divided regarding the plaintiff's residual capacity for work, but the preponderance of opinions suggest that his fit for light work with restrictions.
69 Mr Moulds submitted that the plaintiff’s injuries have not stabilised. He referred to the fact that the plaintiff has been accepted to undertake a pain management program to be supervised by Dr Thomas as evidence of the fact that the plaintiff's level of impairment of his neck and left arm and hand can be improved. I think that is the highest that it can be put. There is no evidence to suggest that the pain management program will successfully treat the pathological process identified by the medical practitioners whose evidence I prefer. I am left to deal with it on the bare admission by the defendant that it will fund such a program.
70 I am not prepared to speculate as to what the pain management program might bring the plaintiff to in terms of improvement of function. It may succeed in improving his function, but it may not. However, history has shown so far that the plaintiff has required what I consider to be a significant amount of treatment for the injury to his neck. It has disabled him in both the context of pain and suffering and pecuniary disadvantage. I propose to proceed to determine the ultimate questions raised in this application on the evidence before me and not on the basis of speculating as to what that pain management program might bring the plaintiff.
71 Dr Chan addressed the question of the plaintiff undertaking a pain management program. He said he was unable to give a prognosis of the plaintiff's future incapacity until after he was in a position to assess the plaintiff's response to counselling and pain management. In the context within which he said that it would appear that what he meant was his prognosis in assessing the plaintiff's functional capacity, rather than suggesting that the counselling and pain management of which he spoke would in some way resolve the plaintiff’s injury. Interestingly, however, Dr Chan expressed a poor prognosis for the plaintiff, being of the opinion that the plaintiff had no capacity for his pre-injury duties or alternative duties.[45]
[45]PCB 47b
An Aggravation?
72 Mr Moulds submitted that I must be satisfied that the aggravation of the pre-existing neck condition suffered by the plaintiff is of itself serious. I agree that the applicable principal law provides that I must approach this matter in that way.
73 The clinical notes of Dr Hubert create a suspicion that if the plaintiff had pain in his neck and some radiation of pain into the right side greater than the left that there might have been some neurological abnormality giving rise to that finding. I propose to operate on the basis that the plaintiff did have some pathological basis for the pain and neurological symptoms recorded by Dr Hubert.
74 The next question I must deal with is whether the plaintiff has a serious injury, and then I must determine whether the serious injury he may have was caused by the transport accident when compared with the pre-existing condition of his neck.[46]
[46]Petkovski v Galletti [1994] 1 VR 436
75 I have set out the plaintiff's evidence, the histories taken by the medical practitioners and the opinions principally because of what Tate JA said in Hawkins v DHL Express (Australia) Pty Ltd [47] that in determining the pain and suffering consequences of an injury it is necessary to consider not only not only what the plaintiff says about the pain both in court and to medical practitioners, but also what the plaintiff does about the pain. For example, taking medication, resting, seeking medical treatment, as well as what the medical practitioners say about the extent and intensity of the plaintiff's pain and what the objective evidence shows about the disabling effect of the pain.
[47][2013] VSCA 26 at paragraph 63
76 I have made the comparison that I must make in applying the principal in Petkovski, and having done so I am satisfied that the plaintiff suffered an aggravation of the pre-existing condition of his neck of such magnitude that it easily amounts to being a serious injury.
77 In summary, I accept the plaintiff's evidence that he was working full-time as a cutter. He had intermittent treatment from Dr Pan and Dr Hubert for a neck condition which was treated by the prescription of modest medication, osteopathic treatment and rest. What occurred following the occurrence of the transport accident is dramatically different. The plaintiff stopped work altogether. He sought and received significant medical treatment which continues to the present time. He is on a regime of medication to treat the pain in his neck and left arm and hand and for headaches. It seems to me that the comparison inevitably leads to the conclusion that he suffered an aggravation of a pre-existing neck condition of such magnitude and pain and suffering consequences and pecuniary disadvantage of such magnitude, that I am satisfied that the greater majority of the consequences he now contends for resulted from the aggravation of the pre-existing condition.
Conclusion
78 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law.
79 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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